School district leaders should consult with their lawyers over new guidance from the U.S. Department of Education that threatens the loss of federal funding to schools that don鈥檛 end essentially any sort of race-based programming, education experts say.
from the head of the Education Department鈥檚 office for civil rights, sent to K-12 schools and universities that receive federal dollars on Feb. 14, is the latest effort from President Donald Trump鈥檚 administration to weed out what he labels diversity, equity, and inclusion, using the threat of cutting funds as a way to exert the federal government鈥檚 muscle on K-12 schools. The letter relies on the U.S. Supreme Court鈥檚 decision in 2023 that struck down affirmative action in college admissions, with the department arguing the court鈥檚 ruling 鈥渁pplies more broadly.鈥�
The civil rights office directs districts and colleges to cease using 鈥渞ace as a factor in admissions, financial aid, hiring, training, and other institutional programming.鈥� It gives districts until March 1 before it says it will open investigations into schools and universities that don鈥檛 comply with the order. It comes on the heels of executive orders from President Trump that also have sought to curb DEI.
Though the letter doesn鈥檛 change the underlying laws the civil rights office is charged with enforcing, it does spell out the administration鈥檚 interpretation of those laws, and what the office for civil rights鈥� enforcement priorities will be, said John Borkowski, a lawyer with Husch Blackwell in Chicago who represents and works with school districts.
鈥淚 think it鈥檚 important for districts to talk to their counsel and review policies and programs in potentially affected areas to make sure that they鈥檙e comfortable that they鈥檙e legally compliant,鈥� Borkowski said.
It鈥檚 something that will have to be handled district by district, Borkowski said. Depending on where a district is located, federal courts have differed in their interpretations of federal law, and different state laws also apply.
鈥淎ll of those things need to be balanced, and this [guidance] is one of the things that they鈥檒l have to take into account,鈥� he said. 鈥淏ut it鈥檚 certainly not the only thing.鈥�
The Feb. 14 guidance is another example of how Trump鈥檚 Education Department is using its office for civil rights as a tool to carry out the president鈥檚 social agenda. In recent weeks, the civil rights office has dismissed complaints involving district book challenges and launched investigations into athletic associations that have pushed back on Trump鈥檚 executive order barring transgender girls from girls鈥� sports teams. At the same time, much of the office鈥檚 day-to-day work has stopped.
The 鈥渄ear colleague鈥� letter is an unmistakable sign of a DEI crackdown in schools
The letter is a 鈥渧ast and unjustified expansion鈥� of the Supreme Court鈥檚 affirmative action decision, said Sumayya Saleh, associate director of educational opportunities project for the Lawyers鈥� Committee for Civil Rights Under Law.
鈥淭he letter is simply wrong that school programs advancing diversity, equity, and inclusion are presumptively illegal,鈥� she said. 鈥淲hile the decision that this letter relies on was a blow to affirmative action at higher education institutions, its ruling is really quite limited and still allows for institutions to use other lawful means to advance diversity and equity, whether at the college level and certainly in the K-12 level, which that case is not even about.鈥�
William Trachman, who served as a deputy assistant secretary in the office for civil rights in the first Trump administration and is part of the Mountain States Legal Foundation, a conservative legal advocacy group, said the letter was a 鈥渟hot across the bow鈥� for districts that have embraced DEI.
Trachman said that the first administration spent time rolling back Obama administration efforts, but this administration can make more progress.
The new guidance is 鈥渁lso making sure schools know there鈥檚 a new sheriff in town, and there鈥檚 going to be a robust enforcement effort on these issues,鈥� he said.
But with the scope of the letter being quite broad, Saleh said, the 鈥渢rickle-down effect is potentially catastrophic.鈥�
鈥淚 think it鈥檚 important for school districts not to recoil or engage in self censorship, so to speak, just because this guidance has been issued,鈥� she said. 鈥淚 think it鈥檚 important for them to examine and explore what the law actually holds, not how the current administration is interpreting the law, and then consider within the bounds of what continues to be lawful, what efforts can they still take to pursue their interests of ensuring diversity and equal access on their campuses?鈥�
Cutting off funds to school districts is a multi-step process
It鈥檚 not possible for the executive branch to unilaterally pull funding. The office for civil rights must first investigate allegations, find a violation, and also find that the school is refusing to address it. The department would then recommend a funding termination, and there would be a waiting period during which Congress could override the department鈥檚 attempt to terminate funds.
Through case law and regulation, the department can鈥檛 cut all funding to a school, either, to keep from harming innocent students and staff, and to prevent vindictive or punitive use of OCR investigations. The funding termination鈥攚hich is rare鈥攚ould have to target the particular program where OCR has found a violation.
School districts can also appeal funding termination decisions.
Sasha Pudelski, the director of advocacy for AASA, The School Superintendents Association, said that districts should continue to focus on doing what鈥檚 best for their students. If they feel 鈥渃ompelled to try and proactively avoid OCR challenges鈥� they could focus on examining programs or activities that explicitly discuss race. But she emphasized that the guidance hasn鈥檛 changed the law.
鈥淚n light of President Trump鈥檚 efforts to diminish OCR enforcement and the legal arguments underpinning the guidance that may be challenged, districts should continue to pay attention to what鈥檚 happening at the federal level and consult with attorneys about what they need to do in response to it,鈥� she said.
The implications of Trump鈥檚 DEI crackdown are still unclear
Though the administration has taken a harsh stance on DEI, the practical implications of its mandates have been unclear for educators.
During her U.S. Senate confirmation hearing last week, presumptive Secretary of Education Linda McMahon declined to offer specifics for how districts could interpret Trump鈥檚 executive order on 鈥渞adical indoctrination,鈥� which called on federal officials to develop plans for withholding money from K-12 schools that engage in what he calls 鈥渄iscriminatory equity ideology鈥� and 鈥済ender ideology.鈥� McMahon didn鈥檛 answer whether Black history could be taught, or whether schools could hold affinity clubs for students with shared backgrounds.
Meanwhile, more than 100 employees at the Education Department have been placed on leave or terminated due to tenuous ties to DEI work. Many had attended a diversity training held during Trump鈥檚 first term.
Elon Musk鈥檚 unofficial agency, the Department of Government Efficiency, has also slashed hundreds of millions of dollars in contracts for teacher training, claiming that they promoted DEI, anti-racism, and the examination of white privilege.
The letter from OCR, and the broader efforts from the executive branch to diminish DEI, has caused some to fear that districts will comply proactively and cut programming.
Royel Johnson, an associate professor of education at the University of Southern California, fears that the letter would scare districts to 鈥渁bandon the work that so many know is important,鈥� saying DEI is part of the puzzle to make students feel connected and safe in their schools, which has implications for student success, retention, and graduation. He hoped district leaders would 鈥渓ean in鈥� to their legal teams to understand the difference between law, guidance, and mere recommendations.
鈥淭his is much broader than ideology at this point,鈥� Johnson continued. 鈥淭his cuts across so many issues that I think we all care about, and I hope people will pay close attention to what鈥檚 happening and use every lever available to them to push back.鈥�
